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Wednesday, July 14, 2010

Lawsuit accuses Tulsa City Council of violating Open Meeting Act

A lawsuit filed today accuses the Tulsa City Council of violating the state Open Meeting Act during an executive session last month to discuss a criminal investigation of the mayor's chief of staff.

According to the lawsuit, the Council violated the law on June 17 by:

Meeting in executive session to discuss "pending litigation" when there was none.

Voting during executive session to exclude Mayor Dewey Bartlett from the closed-door meeting.

The plaintiffs also challenged the Council's authority to conduct a criminal investigation.

Their attorney, Paul DeMuro, told the Tulsa World that the lawsuit is not about the allegations made in the independent investigator's report to the Council or about "defending the mayor."

“This is really about restoring transparency to the City Council,” DeMuro said. “It is centered on the premise that the government needs to follow its own rules.

"It’s very obvious to anyone with even a cursory understanding of the Open Meetings Act that the violations by the City Council were blatant and numerous,” he said.

The Council's agenda for a special meeting June 17 called for an executive session "concerning an investigation into statements made by the Mayor’s Administration to the Tulsa City Council and to federal agencies regarding the use or repurposing of Justice Administration Grant funds for police officer salaries."

According to the minutes of the meeting, the Council's attorney, Drew Rees, recommended the executive session "for the purpose of discussing the pending litigation...."

The lawsuit contends that was misleading because "there was no pending litigation."

The Open Meeting Act permits a public body to meet in executive session with its attorney to discuss "confidential communications ... concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))

“A ‘pending’ claim can refer to litigation or an administrative action which either presently exists or is merely potential or anticipated,” state Attorney General Drew Edmondson said in 2005. (2005 OK AG 29, ¶ 13)

We note at the outset that ‘pending’ investigations, claims, and actions must refer to a wider class of things than those already in existence; otherwise, the term ‘pending’ would be superfluous.

‘Pending’ is not defined in the OMA or elsewhere in the Oklahoma Statutes. In such cases, the ordinary meaning of a word is used. The dictionary defines ‘pending’ as "not yet decided : in continuance: in suspense’ or ‘until the occurrence or completion of : while awaiting.’ Webster's Third New International Dictionary 1669 (3d ed. 1993). The first definition connotes something already in existence, while the second includes things not yet existing.

Thus, ‘pending’ can refer to an investigation, claim or action which either presently exists or is merely potential or anticipated. (Id. ¶ 9)

The lawsuit accuses the Council of also violating the law by voting during the executive session to exclude the mayor.

"There was no public vote on the question of whether the Mayor should be excluded from the executive session, nor was any public record made memorializing the vote which was taken in executive session," the lawsuit states.

In a commentary on that meeting, the FOI Oklahoma Blog noted that under the Open Meeting Act, "any vote or action on any item of business considered in an executive session shall be taken in public meeting with the vote of each member publicly cast and recorded." (OKLA. STAT. tit. 25, § 307(E)(3))

Another provision of the statute also requires that "[i]n all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. 25, § 305)

The lawsuit also challenges the Council's authority to conduct a criminal investigation.

"The City Charter only give the Council the authority to 'investigate the conduct of the city government,' in which case the City Council 'may make appraisals, comments, and recommendations to the Mayor on the efficiency, economy, and effectiveness of administrative practices, methods, systems, and controls,'" the lawsuit said.

The plaintiffs ask the court to declare the executive session illegal, invalidate any action taken during the meeting, and require the Council to make public all records related to the executive session.

They also ask the court to grant a permanent order "compelling" the councilors "to prospectively comply with the Oklahoma Open Meeting Act."

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When individuals or organizations in Oklahoma believe that their access rights are threatened, they turn to FOI Oklahoma for help. We contact those who are limiting freedom of access to encourage them to comply with the laws.
We also conduct workshops for educators, students, government officials, attorneys and the general public. Our Web site provides a number of resources, including a model letter for records requests and primers on Oklahoma's open meeting and records laws.
Our services and resources are made possible by paid memberships and donations. Interested in joining? Visit www.foioklahoma.org.
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.